TMI Blog2022 (8) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Considering the nature of the work undertaken by the Respondents, it is evident that the Impugned Condition is not arbitrary, discriminatory, mala fide or actuated by bias. Hence, this Court does not find any infirmity with the Impugned Condition and is disinclined to interfere with it. The material on record shows that there are allegations that the key managerial personnel, nature of work and functioning of the Petitioner Company is the same as ADPL and the Petitioner Company has allegedly benefitted from the proceeds of crime to the tune of Rs. 2,36,25,000/-, received by ADPL as these were transferred to the Petitioner Company. Hence, the Petitioner cannot claim that it has been unfairly excluded the Petitioner from participating in the bid - this Court is not inclined to interfere with the Impugned Condition or the decision of the Respondent Nos. 2-4 from excluding the Petitioner from participating in the said tender process. Petition dismissed. - W.P.(C) 5292/2022 & CM APPL. 15783/2022 - - - Dated:- 1-8-2022 - SATISH CHANDRA SHARMA, C.J. SUBRAMONIUM PRASAD, J Petitioner Through: Mr. Sandeep Sethi, Senior Advocate with Mr. Himanshu Sethi, Mr. Sandeep Sethi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is pertinent to mention that criminal proceedings were initiated against the Directors of ADPL in 2013 alleging that the Directors of ADPL have forged and fabricated several non-transfer use certificates in the name of Chhattisgarh Police for American Technologies Inc. There is also an allegation that they have applied for import licence from DGFT on the basis of photocopies issued by Bihar Police. ii. Thereafter, in 2019, the Enforcement Directorate (hereinafter referred to as the ED ) registered ECIR No. STF/12/2019 (hereinafter referred to as the said ECIR ) against some of the Directors of the Petitioner. iii. Vide Provisional Attachment Order No. 03/2020 (hereinafter referred to as the Attachment Order ) the ED provisionally attached the assets of the Petitioner, on account of the fact that the Petitioner was holding the proceeds of crime generated by ADPL. The Attachment Order was confirmed by the Ld. Adjudicating Authority. iv. In 2021, the Electronics and Radar Development Establishment and Naval Physical and Oceanographic Laboratory, i.e. Respondent No. 3 and Respondent No. 4 respectively, invited online bids for supply of VPX based multi-channel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osol Pvt Ltd. whereby all the assets of Alligator have been taken over by Trident by virtue of this amalgamation. ED has made Trident as a beneficiary of the order proceeds which is not correct the same is being contested by us at PMLA Tribunal Hon'ble Delhi High Court. Additionally, its worthwhile mentioning here that as per settled law. when any company gets amalgamated, liabilities are transferred as existing on the date of amalgamation to transferee and no future legal liabilities including criminal liabilities {in any] can be transferred to transferee (In our case Trident lnfosol) from transferor (in this case Alligator Designs). The ED case pertains to Alligator Designs which was amalgamated with Trident lnfosol effective January 2017, whereas ED case is of year 2019. With the said law in place inclusion of Trident lnfosol in the case against Alligator Designs by ED is being contested by us in the appropriate courts. xii. Since the bid of the Petitioner was not being considered, the Petitioner has filed the instant writ petition. 3. Ld. Senior counsel for the Petitioner argued that the only investigation where the Petitioner had been made a party was ECIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court that the proceeds of crime to the tune of Rs. 2,36,25,000/-, received by Alligator Designs were transferred to the Petitioner Company. 9. The Respondent has placed reliance upon the judgment titled R.K. Jain Sons Hospitality Pvt. Ltd. through Its Director v. Union of India Anr., W.P. (C) 3712/2020, to state that one cannot challenge the conditions of the tender after having participated in it. 10. Having heard the counsels appearing for the Petitioners and the Respondent and perusing the material on record, this Court will proceed to examine the present case. 11. The said tenders have been floated by Respondent Nos.3 4, i.e. the Electronics and Radar Development Establishment and Naval Physical and Oceanographic Laboratory respectively. 12. Courts generally follow a hands off approach when Government fixes the eligibility conditions in the matters pertaining to tenders, especially those that pertain to matters of national security. In Siemens Public Communication Networks (P) Ltd. v. Union of India, (2008) 16 SCC 215, the Apex Court has observed as under: 41. In the instant case, as has been rightly contended by the learned Additional Solicito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s judgment call, therefore, to decide whether the government's decision is what is best and in its interests, is indeed so. (emphasis supplied) 14. The Supreme Court in Manohar Lal Sharma v. Narendra Damodardas Modi, (2019) 3 SCC 25 , has observed the following with regards to judicial review in contracts pertaining to defence procurement: 9. We also cannot lose sight of the tender in issue. The tender is not for construction of roads, bridges, etc. It is a defence tender for procurement of aircrafts. The parameter of scrutiny would give far more leeway to the Government, keeping in mind the nature of the procurement itself. This aspect was even emphasised in Siemens Public Communication Networks (P) Ltd. v. Union of India [Siemens Public Communication Networks (P) Ltd. v. Union of India, (2008) 16 SCC 215]. The triple ground on which such judicial scrutiny is permissible has been consistently held to be illegality , irrationality and procedural impropriety . 10. In Reliance Airport Developers (P) Ltd. v. Airports Authority of India [Reliance Airport Developers (P) Ltd. v. Airports Authority of India, (2006) 10 SCC 1] the policy of privatisatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he nation's sovereignty. (emphasis supplied) 15. The said Tenders are for procurement of instruments which are necessary for the security of the country. Keeping in mind the nature of tender, it cannot be said that the Impugned condition, which warrants that an undertaking should be given by the Bidder firm/company/vendor that in the past they have never been banned/debarred for doing business dealings with Ministry of Defence/Govt. of India/ any other Govt. organisation and that there is no enquiry going on by CBI/ED/any other Govt. agency against them, is bad in law or is violative of Article 14 of the Constitution of India. 16. Further, as is evident upon a perusal of the Attachment Order dated 19.08.2020 the Petitioner Company is a sister concern of ADPL and the Directors of the Petitioner Company, namely, Nitin Gupta, Pawan Seth and Ashok Gupta are also Directors of ADPL. It also appears that investigation reveals that the Directors of ADPL, with the help of their aids have used fake and forged certificates in their erstwhile contracts. It also cannot be denied that the assets of the Petitioner have been attached by the said Attachment Order. In view of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonableness, it would be legitimate to take into consideration the national priorities; (b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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